https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10201

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E124 OF 2025** **VICTOR NJOROGE MWANGI APPELLANT** **VS** **STEPHEN MWANGI GICHUHI 1ST RESPONDENT** **ISAAC WAHOME 2ND RESPONDENT** *(****Being an appeal arising from the judgment of the Magistrates court Kiambu by the Learned Senior Principal Magistrate M.A OPONDO, delivered on 16th July 2025)*** **JUDGMENT** 1. This is an appeal from the Judgment and decree of Hon. M.A OPONDO, Senior Principal Magistrate, delivered on 16th July 2026 in Kiambu CMCC No. E260 of 2020. The Appellant was the plaintiff in the lower court. The court heard the matter and delivered judgment as follows: *a. Liability 100% for the Plaintiff.* *b. General damages Ksh. 750,000/=* *c. Special damages Ksh. 3,550/=* *e. Costs and interest of the suit.* 2. The appellant filed a memorandum of appeal dated 28th November 2025 seeking the following orders: ***i) That the honourable court be pleased to allow the appeal.*** ***ii) That this court be pleased to award Special Damages and Future Medical expenses.*** ***iii) That the honourable court be pleased to set aside the Decree by the Chief Magistrate’s court and substitute it with a decision of this court.*** ***iv). That the costs of the appeal be awarded to the appellant.*** 3. The memorandum is anchored on the following grounds:- ***i) That the learned magistrate erred in law and fact by failing to consider the Special Damages despite the Appellant having produced treatment receipts forming part of the Appellants documents dated 15th June.*** ***ii) That the learned magistrate erred in law and fact by failing to consider the Appellant’s future despite the same having been pleaded and proved during parties viva voce evidence.*** ***iii) That the learned magistrate erred in law and fact by completely disregarding the Appellants future medical expenses and Special Damages duly pleaded and proved.*** ***iv) That the Learned Trial Magistrate erred in law and fact by failing to rely on any authority and /or basis whilst arriving at her judgment in the exclusion of the Future Medical Expenses and*** **Evidence** 4. Vide the plaint dated 15th June 2020, the appellant sought that judgment against the defendant in the following terms:- *i) General damages* *ii) Special damages of Ksh 197,208.* *iii) Costs of the suit.* *iv) interest on i) ,ii) and iii) above.* 5. The appeal relates to damages only. On the injuries sustained, the appellant produced the medical report dated 25.11.2019 by Dr. G.K Mwaura, who assessed future medical expenses at Ksh 200,000. The Respondent also produced the second medical report dated 27th January 2020, prepared by Dr. Ichamwenge Ruth, who estimated the cost of future treatment at Ksh 80,000. 6. The injuries as pleaded were not disputed. The only point of raised by the Appellant was that the trial magistrate failed award the Appellant future medical expenses which had been proved. 7. The appellant also took issue with the fact that despite having pleaded and proved special damages, the trial magistrate erred in failing to take into account the evidence tendered in proof of the same. **Analysis** 8. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In the case of *Mbogo and Another v Shah [1968] EA 93, the court stated*: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 9. The Court must remember that it has neither seen nor heard the witnesses. The trial court has observed the demeanor and truthfulness of those witnesses. However, the documents still speak for themselves. The observation of documents is the same as that of the lower court, as parties cannot read the matters extrinsic to them into those documents. In the case of *Peters v Sunday Post Limited [1958] EA 424,* the court therein rendered itself as follows: “It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 10 .The appellate court is not bound necessarily to accept the findings of fact by the court below as held in the case of *Selle & Another v Associated Motor Board Company Ltd. [1968] EA 123,* where the Court stated as follows: “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 11 .The burden of proof is on whoever alleges. This is succinctly set out in Sections 107-109 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Cap 80 Laws of Kenya as hereunder:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 12. The burden of proof was also addressed by the Court of Appeal in the locus classicus case of *Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334*, where the said court held that: “As a general proposition under Section 107 (1) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 13 .The burden of proof is neither on the Plaintiff nor the Defendant but on the party that alleges specific matters. It is on the party who alleges. *In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR* it was held that: “As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) provides the burden lies in that person who would fail fi no evidence at all were given as either side.” 14 .A party who persuades the court more than the other of the likelihood of the events in controversy will carry the day. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in *William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE* 526 stated that: “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 15 .The balance of probability standard means that a court is satisfied an event occurred as stated by Lord Nicholls of Birkenhead in *Re H and Others (Minors) [1996] AC 563, 586* that; “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 16. The position is also that the evidence must carry a reasonable degree of probability, but not so high as is required in a criminal case. In *Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR,* the Judges of Appeal held that: “Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;- “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” **Future medical expenses.** 17. It is not in dispute that the Appellant’s and the Respondent’s doctors in their reports indicated that the appellant would incur future medical expenses as a result of the injuries sustained. The controversy here is not the amount which ought to have been awarded to the plaintiff, but whether the trial magistrate erred in failing to award the appellant under the said heading. 18**.** In the case of*Deliferian v Onchari [2026] KEHC 1596 (KLR),*the court heldthat on future medical expenses, the Respondent was under duty to plead even an approximate amount that would constitute future medical expenses. In the case of, *Tracom Limited & Another vs. Hassan Mohamed Adan Civil Appeal Number 106 of 2006,* the Court of Appeal stated:- “We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require. 19. The requirement for medical expenses as special damages should be pleaded and proved was emphasized in the cases *of Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98 and Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992*, where it was held that while the cost of future medical expenses are special damages and whereas a claim for special damages should not only be pleaded but also strictly proved. What amounts to strict proof must depend on the circumstances, that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. 20. I have looked at the plaint, and find that the Appellant did not plead future medical expense, and hence, the trail magistrate did not err in failing to award the same. As such, I find no reason to disturb her award on this account of future medical expenses. **Special damages.** 21. The Court of Appeal in *Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177* stated that: “The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.” 22. Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved. In *Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003*, Kimaru, J held that: “In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non- pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…There ought to be a distinction between past pecuniary losses or expenses already incurred and could easily be calculated by say reference to receipts obtained and anticipated future pecuniary loss or expenses which is continuing and which though one may know the multiplicand you will not normally know how long the loss will take. Such an anticipated loss is general damage, which must of necessity await the completion of the suit to be assessed by the Court. Special damages on the other hand is calculable at the date of the trial out of which a round figure will be obtained. General damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special damages on the other hand, are such as the law will infer, from the nature of the act. They do not follow in the ordinary course but are exceptional in their character and, therefore, they must be claimed specifically and proved strictly…Specific loss of profits consequential upon the loss of use of an article for a specific period to the date of the plaint is special damage, which must be pleaded. However, in certain circumstances loss of profits could be included within a claim for general damages…General damages consist of the nature of prospective loss of income while special damages consist of out of pocket expenses and loss of earnings or income incurred down to the date of trial and is generally capable of substantially exact calculation. Where damages has become crystallised and concrete since the wrong the defendant could be surprised at the trial by the detail of its amount.” 23. On special damages, the amount of Ksh 197,208/= was pleaded and the lower court awarded Ksh. 3,550/=. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. 24. At paragraph 23 of the lower court judgement, the court pointed out that it had noted that the plaintiff produced receipts showing payments as exhibits herein from his list of documents. That however, he failed to tender receipts showing that he incurred medical expenses. 25. I have looked at the record of the lower court, and at page 23 of the record of appeal and find the appellant at page 23 annexed receipts on account of medical expense paid to Kijabe Hospital for Ksh 193,208. On the 9th August 2023, when the appellant gave evidence in court, he adopted his witness statements and sought to produce his list of exhibits, which according to the record, the court allowed the production of the exhibits, save for the medical report and the P3 Form. The claim for special damages is further supported by receipts at page 24 of the appellant’s documents. 26. I find that the amount pleaded was the amount proved. I hereby substitute the award on special damages of Ksh 3,355, with an award of Ksh 197,208. 27. The award is thus:- *a. Liability 100% for the Plaintiff.* *b. General damages Ksh. 750,000/=* *c. Special damages Ksh. 197,208/=* *e. Costs and interest of the suit.* *f. 30 days stay granted.* 28. Each party shall bear the costs of the appeal. The Respondent shall bear the cost of the suit in the Lower Court. **DELIVERED, DATED, AND SIGNED ON THIS 10TH DAY OF JULY, 2026.** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU** **JUDGE** In the presence of: - Miss Lilande for the Appellant N/A for the Respondent Court Assistant- Mr. Kibet